# Global-Tech v. SEB: Willful Blindness and the Knowledge Element of Induced Infringement

> The Supreme Court held that inducing patent infringement under § 271(b) requires knowledge of infringement, but that willful blindness to a patent can supply that knowledge.

Topic: Patents  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/global-tech-v-seb-induced-infringement-willful-blindness/


*Global-Tech Appliances, Inc. v. SEB S.A.*, 563 U.S. 754 (2011), settled a long-running uncertainty about the mental state required to induce patent infringement, and in doing so imported the criminal-law doctrine of "willful blindness" into patent law. The Patent Act provides in 35 U.S.C. § 271(b) that "[w]hoever actively induces infringement of a patent shall be liable as an infringer," but the text says nothing about what the inducer must know. Writing for an 8–1 Court, Justice Alito held that induced infringement requires knowledge that the induced acts constitute patent infringement — and that a defendant who deliberately shields itself from confirming a patent's existence can be charged with that knowledge under the willful-blindness doctrine.

## At a glance

- **Case:** *Global-Tech Appliances, Inc. v. SEB S.A.*, 563 U.S. 754 (2011), Docket No. 10-6
- **Court:** Supreme Court of the United States, on certiorari to the Federal Circuit
- **Decided:** May 31, 2011; 8–1
- **Opinion:** Justice Alito, for the Court; Justice Kennedy dissenting
- **Subject matter:** The knowledge requirement for inducing infringement under 35 U.S.C. § 271(b)
- **Holding:** Induced infringement requires knowledge that the induced acts constitute patent infringement, and willful blindness satisfies that knowledge requirement

## The copied deep fryer

SEB, a French company, invented and patented a "cool-touch" deep fryer with an inexpensive plastic outer housing that stayed cool during use. The fryer sold successfully in the United States under SEB's Fry Daddy and other brands. Pentalpha Enterprises, a Hong Kong subsidiary of Global-Tech Appliances, set out to make a competing fryer for a U.S. company. To do so, Pentalpha purchased an SEB fryer in Hong Kong and copied all but its cosmetic features. Critically, the fryer Pentalpha bought abroad bore no U.S. patent markings, because it had been made for a foreign market.

Pentalpha then retained an attorney to conduct a right-to-use study and render an opinion on whether its copied fryer would infringe any U.S. patents. But Pentalpha did not tell the attorney that it had copied SEB's product directly. The attorney, unaware of the copying, located no relevant patents — including SEB's — and issued an opinion that the fryer did not infringe. Pentalpha sold its fryers to U.S. customers, who resold them in competition with SEB. SEB sued, alleging both direct infringement by the resellers and that Pentalpha had induced that infringement. A jury found for SEB, and the Federal Circuit affirmed.

## Knowledge of infringement, not merely of the acts

The threshold legal question was what § 271(b) requires an inducer to know. Two readings were possible: that the defendant need only intentionally cause the acts that turn out to be infringing, or that the defendant must also know those acts amount to infringement of a patent. The Court held that the statute requires the latter. Reading § 271(b) alongside the contributory-infringement provision in § 271(c), and drawing on the Court's earlier decision in *Aro Manufacturing Co. v. Convertible Top Replacement Co.* interpreting the knowledge element of contributory infringement, the Court concluded that "induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement." Mere knowledge of the acts themselves is insufficient; the inducer must know of the patent and that the induced conduct infringes it.

That holding raised the stakes for SEB's case, because the evidence did not show that Pentalpha had actual knowledge of SEB's patent — Pentalpha claimed it never learned of the patent at all. To sustain the judgment, the Court had to decide whether something short of actual knowledge could satisfy the requirement it had just announced.

## Importing willful blindness

The Court held that it could, adopting the doctrine of willful blindness familiar from criminal law. A defendant cannot escape liability, the Court reasoned, "by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances." Willful blindness has two requirements: the defendant "must subjectively believe that there is a high probability that a fact exists," and the defendant "must take deliberate actions to avoid learning of that fact." So limited, a willfully blind defendant is "one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts." The doctrine thus surpasses recklessness and negligence, which impose liability for failing to appreciate risks a reasonable person would perceive but do not require the defendant's own affirmative effort to remain ignorant.

Applying the standard, the Court found the evidence sufficient. Pentalpha had copied an overseas model of SEB's fryer, knew that the product would be sold in the United States, and knew enough about the market and the risk of patents to commission a right-to-use opinion — yet deliberately withheld from its own attorney the fact that it had copied SEB's design. A reasonable jury could conclude that Pentalpha subjectively believed there was a high probability the fryer was patented and took deliberate steps to avoid confirming it. The Court therefore affirmed, even though it rejected the Federal Circuit's articulation of the governing standard.

## A rejected standard and a lone dissent

The Federal Circuit had upheld liability under a "deliberate indifference to a known risk that a patent exists" standard. The Supreme Court disapproved that formulation as insufficiently demanding. Deliberate indifference, the Court explained, "permit[s] a finding of knowledge when there is merely a known risk that the induced acts are infringing" and does not require the "active efforts by an inducer to avoid knowing" that define willful blindness. In other words, the Federal Circuit's test would sweep in defendants who were merely aware of a risk, whereas willful blindness requires deliberate avoidance of a nearly certain truth.

Justice Kennedy dissented alone. He agreed that § 271(b) requires knowledge of infringement but objected to treating willful blindness as the equivalent of knowledge. In his view, a person who is willfully blind is precisely a person who does not know a fact, and the Court should not have equated the two. He would have remanded for the lower courts to consider in the first instance whether the evidence established actual knowledge under a proper instruction.

## Open questions

*Global-Tech* answered the mental-state question for inducement but generated new lines of inquiry. Because willful blindness turns on a defendant's subjective belief and deliberate avoidance, its application is intensely fact-dependent, and lower courts have had to work out how strong the "high probability" must be and what conduct counts as "deliberate" avoidance. The decision also fed directly into later disputes about inducement. In *Commil USA, LLC v. Cisco Systems, Inc.*, 575 U.S. 632 (2015), the Court built on *Global-Tech* to hold that a defendant's good-faith but mistaken belief in a patent's invalidity is not a defense to inducement, clarifying that the required knowledge concerns infringement, not the separate question of validity. The precise boundary between the knowledge § 271(b) demands and a defendant's beliefs about the scope, validity, or existence of a patent continues to be litigated.

## Implications

- **Inducement requires knowledge of infringement.** A plaintiff must prove the defendant knew of the patent and knew (or was willfully blind to the fact) that the induced acts infringed it — not merely that the defendant intended the underlying acts.
- **Willful blindness can substitute for actual knowledge.** Deliberate efforts to avoid confirming a strongly suspected patent expose a defendant to inducement liability as if it had actual knowledge.
- **A right-to-use opinion is only as good as its inputs.** Commissioning a clearance opinion while concealing material facts — such as direct copying — can be evidence of willful blindness rather than a shield against it.
- **Deliberate indifference is not enough.** Awareness of a mere risk that a patent exists falls short; liability requires the defendant's affirmative choice to remain ignorant of a near-certain fact.

## Frequently asked questions

**What mental state does induced infringement require?** Under 35 U.S.C. § 271(b), liability for inducing infringement requires knowledge that the induced acts constitute patent infringement. It is not enough that the defendant intended to cause the acts; the defendant must know those acts infringe a patent.

**What is the willful blindness doctrine?** Willful blindness is a substitute for actual knowledge. A defendant is willfully blind when it subjectively believes there is a high probability that a fact exists and takes deliberate actions to avoid learning that fact. Such a defendant is treated as if it actually knew the fact.

**Why did the deliberate indifference standard fail?** The Federal Circuit had allowed liability based on "deliberate indifference to a known risk" that a patent exists. The Supreme Court rejected that formulation as too permissive because it did not require active efforts to avoid knowledge and could impose liability on a merely negligent or reckless defendant.

## Authorities and sources

- *Global-Tech Appliances, Inc. v. SEB S.A.*, 563 U.S. 754 (2011), Docket No. 10-6 (decided May 31, 2011). [Justia](https://supreme.justia.com/cases/federal/us/563/754/); [Cornell Legal Information Institute](https://www.law.cornell.edu/supremecourt/text/10-6).
- Oral argument and case summary via [Oyez](https://www.oyez.org/cases/2010/10-6).
- Later application of the knowledge requirement: *Commil USA, LLC v. Cisco Systems, Inc.*, 575 U.S. 632 (2015). [Justia](https://supreme.justia.com/cases/federal/us/575/632/).
- The 8–1 vote, Alito authorship, Kennedy dissent, willful-blindness holding, and copied-fryer facts corroborated by [Wikipedia: Global-Tech Appliances, Inc. v. SEB S.A.](https://en.wikipedia.org/wiki/Global-Tech_Appliances,_Inc._v._SEB_S.A.)